E-DRUG: Nader letter to VP Al Gore regarding SA trade dispute
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[copied from PHARM-POLICY with thanks]
The following is a letter sent today by Ralph Nader to Vice President
Al Gore. The letter is a follow-up to an August 20, 1999 letter to
Ralph Nader from Leon Fuerth, the Vice President's National Security
Advisor. Mr. Fuerth's lette says that an agreement between the US and
South Africa is close at hand regarding the current dispute
over South African efforts to authorize compulsory licensing
and parallel importing of pharmaceutical drugs.
Mr. Fuerth's letter, Mr. Nader's letter and background
information about the dispute are on the web here:
http://www.cptech.org/ip/health/sa/
http://www.cptech.org/ip/health/sa/fuerthaug201999.html
http://www.cptech.org/ip/health/sa/gore-sep10-99.html
This is Mr. Nader's letter to Vice President Al Gore.
<-------------begin letter---------------------------------->
Ralph Nader
P.O. Box 19312
Washington, DC 20036
September 10, 1999
Vice President Albert Gore
The White House
Washington, DC 20500
Dear Vice President Gore:
Thank you for Mr. Leon Fuerth's letter of August 20, 1999
regarding the worldwide AIDS crisis. As you know, we have
longstanding concerns regarding US policy on trade, intellectual
property rights and health care, that we have raised on many
occasions. We first wrote about the South Africa dispute on July
29, 1997.
We welcome your recent expression of support for policies
that would make pharmaceutical drugs less expensive in South
Africa. However, we continue to be dismayed at some of the
claims that are used to justify US trade pressures. For example,
Mr. Fuerth's August 20, 1999 letter implies that US concerns over
the South African government's proposals for parallel imports are
driven by questions regarding consistency with "international
agreements." A more candid statement would be that parallel
imports are permitted under international agreements, such as the
WTO TRIPS accord, and that US bilateral pressures are about our
trade agenda, rather than international law.[1]
--------------------fn 1---------------------------------------
While TRIPS gives patent, trademark and copyright owners many
rights, Article 6 permits national governments to use national
discretion in determining when those rights are "exhausted."
This is true for policies on parallel imports, but also for a
number of other national policies. For example, the US can
permit the resale or lending of books, under our first sale
doctrine, which is one of several areas where the US government
exercises national discretion regarding the exhaustion of rights.
So too is the US Supreme Court opinion in Quality King
Distributors v. L'Anza International, Inc. (No. 96-1470), 523
U.S. 135 (1998), concerning parallel imports in the US.
------------------end fn1-------------------------------------
We recognize that the WTO does limit the use of compulsory
licensing of patents, but as I am sure you know, in cases of
public non-commercial use or for national emergencies, the
primary country obligation is to provide compensation for the use
of a patent. The South African government has always indicated
it would comply with this and other provisions of the TRIPS
regarding compulsory licensing.
According to Mr. Fuerth's letter and other press reports, it
appears as though US trade officials often express concerns that
the South African laws may violate some technical obligations of
the TRIPS, and these putative technical deficiencies or
ambiguities are held out as a rationale for the never ending
reviews of the South African Medicines Act. On this score it
should be noted that the TRIPS accord is a new agreement with
many areas of uncertainty, and no country, including the US, is
likely to be in full compliance. For example, the WTO was
recently asked by Canada to determine if pharmaceutical patent
extensions violation Article 27 of the TRIPS, on the grounds that
they discriminate among fields of technology. If the WTO agrees,
the US patent extensions would appear to be illegal under the
TRIPS. Also, on June 23, 1999 the US Supreme Court ruled that
State governments cannot be sued for infringement of patents.[2]
------------------fn2----------------------------------------
See College Savings Bank V. Florida Prepaid Postsecondary Ed.
Expense Bd. (98-149) and Florida Prepaid Postsecondary Ed.
Expense Bd. V. College Savings Bank (98-531), (College Savings
Bank II). http://supct.law.cornell.edu/supct/html/98-149.ZS.html
and http://supct.law.cornell.edu/supct/html/98-531.ZS.html
------------------end fn2-----------------------------------
These US Supreme Court decisions deny patent owners legal
remedies that are required under Article 31 of the TRIPS, pitting
the US constitutional doctrine of sovereign state immunity
against the requirements of TRIPS. Thus, I would hope that the
Vice President and his staff will not make technical compliance
with every one of the 70 Articles of the TRIPS a central focus of
US policy here.
There is no reason why the US government needs to appoint
itself as a supervisor of South African laws on pharmaceuticals.
South Africa's recent struggle to overcome apartheid was based
upon the desire to have a political system that represented
everyone in South Africa, including the poor. With as many as 20
percent of its young people infected with a potentially fatal
disease, it is not surprising that South Africa's democratically
elected leaders are searching for ways to make treatments more
affordable.
I am enclosing two documents for your review. One is an
open letter to you, dated August 1, 1999. This letter was
drafted and first circulated in May 1999, shortly after the USTR
issued its April 30, 1999 report that put South Africa on the US
government's watch list for intellectual property violations. As
noted in the letter, South Africa was not only taken to task for
supporting parallel importing and compulsory licensing of
pharmaceuticals, it was criticized for permitting its medical
personnel to advocate for the poor at meetings of the World
Health Organization. This effort to suppress speech at the World
Health Organization illustrates how profoundly out of touch US
trade officials are in respecting democratic values.
The second document is a September 3, 1999 letter to Dr. Harold
Varmus, asking that the National Institutes of Health (NIH) take
steps to permit the World Health Organization to use US
government rights in government funded medical inventions, to
help the poor. As indicated in the letter to Dr. Varmus, it is
our opinion that it is immoral for the US federal government to
hoard its intellectual property rights in taxpayer funded
inventions while millions suffer and die for lack of access to
essential medicines.
We are pleased that you believe an agreement between the US and
South African governments is close at hand regarding the South
Africa Medicines Act. We hope that this agreement does not
further restrict the ability of the elected government of South
Africa to protect its own people from a terrible public health
catastrophe. We further ask that you join us in urging the
appropriate Administration officials to find ways to give public
health authorities broader access to current and future US
taxpayer funded medical inventions.
Lastly, why doesn't the Vice President sign his letters or reply
directly, as he does to corporate executives?
Sincerely,
Ralph Nader
--
James Love, Director, Consumer Project on Technology
I can be reached at love@cptech.org, by telephone 202.387.8030,
by fax at 202.234.5176. CPT web page is http://www.cptech.org
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